Electronic Frontiers Australa (EFA) today expressed concern about a lawsuit filed against Internet Service Provider iiNet in the Federal Court. A consortium of media companies have sued the ISP for allegedly allowing its users to download infringing movies and TV shows by failing to terminate their accounts after allegations of infringement by the copyright industry.

"This lawsuit is the latest attempt by the movie industry to bully Internet Service Providers into becoming copyright police," said EFA spokesperson Nicolas Suzor. "ISPs are not in a position to monitor and terminate internet access to users based upon unsubstantiated threats from copyright owners, and should not be asked to do so."Recognising the need for immunity from copyright infringement suits such as these, the Australian Government introduced safe harbours for Internet Service Providers as part of the Australia - United States Free Trade Agreement (AUSFTA). These safe harbours provide that ISPs will not be liable to copyright owners for merely routing internet traffic as long as they "adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers." iiNet has publicly stated that it will not disconnect customers on mere allegations of infringement, and that it will comply with its obligations to terminate a customer's internet access after such allegations have been properly proved in a court of law. EFA strongly supports iiNet's position on this issue, and believes that Internet Service Providers cannot and should not be required to pass judgments on the legitimacy of their customers' actions.

"Copyright infringement is a complicated area of law with numerous exceptions. ISPs are simply not equipped and certainly should not be asked to play the role of judge, jury, and executioner upon allegations of infringement," Suzor continued. "Every citizen has a right of due process under the law, and when faced with having their internet service terminated, every citizen has the right to ask that the case against them be proven first."

Experience in the United States of America has shown that allegations of infringement are often made without basis. There have been documented cases in which copyright owners have even alleged that a simple laser printer has illicitly downloaded and shared copyright movies, for example. There have also been allegations of infringement for uses which are clearly permissible under US fair-use law, such as the case of a short home movie in which a baby was filmed dancing to a song on the radio.

Suzor expressed concern that the approach taken by the movie industry will unjustly punish users without due process: "To shift the burden of proof, and require that ISPs terminate access to users upon mere allegations of infringement, would be incredibly harmful to individual internet users in Australia. With the mistakes we have seen in the past overseas, where innocent users have been mercilessly and incorrectly targeted by copyright owners, a regime which requires disconnection without proof goes against all notions of fairness." EFA is also highly concerned that ISPs are being asked to violate the privacy of internet users by spying on their online activities.

EFA believes that if this case were to erode the utility of Australia's safe harbour provisions, it would be extremely stifling to internet innovation and new technology in this country. The existence of safe harbours provide the certainty that operators of communications networks need in order to provide their services to the public. The public benefits greatly from technologies such as BitTorrent, and platforms such as YouTube and MySpace. These services are used for much more than simply exchanging material that infringes copyrights. However, without safe harbours, these services would be likely to be too difficult or risky to operate, or would be so restricted as to lose the majority of their value.

The safe harbours in Australian copyright law exist to protect providers of innovative new technologies from copyright infringement claims which would shut them down. The way the safe harbours are designed also protects users from having their accounts terminated without due process. EFA believes that any weakening of either of these two protections is likely to have disastrous effects for Australian internet users.

In fighting this lawsuit, iiNet will be defending the rights of all Australian Internet users and we wish them luck.

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in 1994, is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties.

12 comments

Interesting, I have had accusations from these companies previously, they cited me having an illegal copy of a game, said game is about 4gb, the zip file they claimed was the game was about 12 bytes (this size was even on their msg), this didn't stop them from trying to get my account suspended with my ISP.

Curious to know if the movie/aria and BSAA monitoring of the IS backbone of P2P would be illegal as wiretapping under Australian Law

Lets look at conspiracy theory
Iinet has been against proposed internet filtering and voicing their strong opinion..... Lets go after a small guy.
Telstra and Optus are doing the same. Why not go after them? lemme think..... Ah, because they can drag this through the courts and they are big players.
WHy don't we sue phone company for making bomb threats, or sue electricity providers for providing electricity to run the computer that use P2P

Comment by Rastko Petrovic on 23 November 2008 at 06:22

The internet is not going to go away. These media companies cannot sustain their outmoded business models. They are only trying to delay the inevitable. IP laws were created to support the public good. They are now being abused by a sniveling minority to the detriment of the public good. Rescind IP laws today.

this doesn't pass the smell test. People need to make some noise about this.

There are a lot more important issues than piracy and censorship to address in todays world.

This internet filtering program is an insult to the intelligence of any people who believe in freedom.

The Australian government is an embarrassment.

Comment by Jackson on 24 November 2008 at 17:39

My main concern is how are the movie companies tracking this use and finding out the people downloading IP protected files. One way I know is offering the file themselves and monitoring who downloads the file, which I can not see as being illegal as the person who owns the copyright is giving you the file, sure you are not paying for the file but you are getting from the owner of the copy right with their permission given by them posting it for download. A policeman can not offer you drugs and than charge you if you accept them as it is entrapment. If they are using ways to monitor peoples downloads without offering the files where is my right to privacy, I could be sending something personal and they could monitor it and obtain the file. It seems more of a concern that a corporation is monitoring and envading peoples privacy in a way that most governement departments could not without legislation.

Compliance with limitations on remedies for copyright infringement against carriage service providers is OPTIONAL

Limitations on remedies for copyright infringement only apply to carriage service providers who:
* Accommodate and not interfere with standard technical measures used to protect and identify copyright material in accordance with a relevant industry code
* On receipt of the notice of claimed infringement, the CSP must expeditiously remove or disable access to the material referred to in the notice

In plain english: Under the new free trade agreement, ISPs are exempt for being sued if they act as copyright police on behalf of copyright holders, and immediately respond to unsubstatiated claims by copyright holders.

Given such a law, it would be all too easy for ISPs to roll over and do as the RIAA/MPAA wishes. Kudos to iiNet for taking the fight to them

Comment by Liam on 25 November 2008 at 05:09

What legal recourse do I have if they tell my ISP I have been downloading copyright material?

They are accusing me of committing an offence after all, surely that is slander at least.

Comment by Dan on 30 November 2008 at 06:42

It is like the Government Suing Holden or Ford because someone drove a Holden or Ford in a Bank Job. What really stinks is the Government thinking we are so stupid as to fall for this type of garbage. Beware though, it is another way for the Government to ensure the ISP censor and monitor the net. At the end of the day, we can all vote with our feet!